Submitted: October 20, 2016
from United States District Court for the District of
Minnesota - St. Paul
MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.
MURPHY, Circuit Judge.
Merrell was convicted by a jury of two counts of producing
child pornography in violation of 18 U.S.C. § 2251(a)
and (e). The district court sentenced Merrell to 240 months
imprisonment on each count, to be served concurrently.
Merrell appeals, challenging various aspects of her trial and
sentencing proceeding. We affirm.
the Department of Homeland Security (DHS) began investigating
Travis Guenthner for the production of child pornography. The
DHS investigation ultimately uncovered 50, 000 photographs
and 90 videos of suspected child pornography on
Guenthner's various computers and devices. That same year
Guenthner pled guilty to five counts of sexual exploitation
of minors and two counts of coercion or enticement and was
sentenced to life in prison.
the child pornography found in Guenthner's possession was
a folder containing sexually explicit photographs of the
torso region of a prepubescent girl (Minor A). A woman's
hands are visible in some of the images in the folder,
sometimes spreading Minor A's genitals apart. Through
forensic examinations the investigators determined that these
photos were created in 2010.
Guenthner told investigators that Merrell had sent him the
images of Minor A and that she had produced the images at his
request. Law enforcement officers then obtained two search
warrants, one for Merrell's home and the other for the
search of "[t]he person of Roxanne Merrell, specifically
body views and photography of her hands." Merrell was
interviewed by officers during the execution of the warrants.
In her recorded interview, she admitted that she had taken
the pictures of Minor A sleeping and that her own hands
appeared in the photographs. Officers took Merrell to a
police station after this interview and recorded 47
photographs of her hands.
was indicted on two counts of production of child pornography
in violation of 18 U.S.C. § 2251(a) and (e). At trial,
the government elicited the testimony of federal agents and
introduced audio clips of Merrell's initial interview
with law enforcement officers and cell phone records
indicating that she and Guenthner had telephoned each other
around the time of the alleged offenses. The government also
called special agent James Cole as an expert witness. Over
Merrell's objections, Cole testified that it was likely
that the adult hands visible in the photographs of Minor A
government also called Matthew Stephenson, a child protection
worker who had conducted a videotaped interview of Minor A
prior to trial. When asked on direct examination about Minor
A's reaction when she saw one of the photos of herself
found in Guenthner's possession, Stephenson testified
that "[Minor A] seemed shocked and confused." On
cross examination, Stephenson testified about the questions
he had posed to Minor A in the interview, but not her
answers. After the government rested, Merrell attempted to
introduce the videotape of Stephenson's interview of
Minor A. The district court excluded the videotape as
jury found Merrell guilty on both counts. At sentencing the
district court determined that the applicable guideline range
was 360 months to life, but varied downward and imposed a
sentence of 240 months imprisonment on each count, to be
served concurrently. Merrell appeals.
first argues that the district court erred by denying her motion
to suppress the 47 photographs of her hands taken during
execution of the search warrant. When reviewing the denial of
a suppression motion, the district court's findings of
fact are examined for clear error and its conclusions of law
are reviewed de novo. United States v. Castellanos,
608 F.3d 1010, 1015 (8th Cir. 2010). Since there is no
dispute about the ...